Florida Power and Light Co. v. Lively, 81-1571

• Decision Date: 05 March 1985
• Docket Number: No. 81-1571,81-1571
• Parties: 10 Fla. L. Weekly 589 FLORIDA POWER AND LIGHT COMPANY, Appellant, v. Glenn V. LIVELY, Sr. and Barbara Lively, his wife, Appellees.
• Court: Florida District Court of Appeals

Page 1270

465 So.2d 1270

10 Fla. L. Weekly 589

FLORIDA POWER AND LIGHT COMPANY, Appellant, v. Glenn V. LIVELY, Sr. and Barbara Lively, his wife, Appellees.

No. 81-1571.

District Court of Appeal of Florida,

Third District.

March 5, 1985.

Richard E. Hardwick, Coral Gables, Daniels & Hicks and Mark Hicks, Miami, for appellant.

Bartel, Shuford & Dubitsky; Morgan, Lewis & Bockius and Paul J. Levine, Miami, for appellees.

Before SCHWARTZ, C.J., and HENDRY, BARKDULL, HUBBART, NESBITT, BASKIN, PEARSON, FERGUSON and JORGENSON, JJ.

OPINION ON REHEARING EN BANC ¹

BARKDULL, Judge.

This is an appeal by Florida Power and Light Company (FPL) from an adverse jury verdict arising out of the collision of a single engine airplane, while in an emergency situation, with two static lines attached to the top of FPL's electrical transmission towers, located 8.7 miles from Miami International Airport (MIA) and 102 feet from the ground. Prior to trial the parties stipulated that damages were $500,000.00. The only issues submitted to the jury were liability and comparative negligence.

The negligence claimed against FPL was that it had a duty to place markers on its static lines so as to make them more visible to pilots encountering problems with flight. In other words, FPL should have foreseen that airplanes might encounter trouble in the area of the power lines and be required to fly between the transmission towers. Thus, FPL had a duty to mark the static lines.

On April 28, 1979, Glenn Lively, as pilot, and a passenger, took off from the Tamiami Airport in a 1978 Bellanca Citabria (an acrobatic plane). They flew to North Perry Airport in Broward County for breakfast. Their flight to North Perry was at 800 feet and it took them under the MIA Terminal Control Area (TCA). After breakfast they took off and headed back to Tamiami. They ultimately went west at an altitude of 800 feet and at 130 m.p.h. toward Krome Avenue in northwest Dade County. The plane began slowing down and losing altitude. The speed dropped to 80 m.p.h. and the pilot assessed the situation as a fuel starvation problem. He unscrewed the manual primer and injected fuel directly into the cylinder heads. This allowed him to regain RPMs and a speed of 120 m.p.h. which would have permitted the plane not only to maintain altitude but to climb. When the airplane regained power, Mr. Lively was about a quarter of a mile from the transmission lines and he admitted seeing them. After regaining power, he climbed to about 100 feet and he decided to fly to Krome Avenue and land there. Prior to impact, Mr. Lively saw the transmission towers, which stood about 102 feet high and 1000 feet apart. He also saw the heavy transmission lines which had not yet been pulled tight because the lines were under construction. They were attached 71 feet above the ground, but they hung about 30 or 40 feet from the surface. At the top of the transmission towers were strung two 3/8 inch galvanized steel wires or (nonenergized) static lines which are used to absorb lightning. Mr. Lively stated that he could not see the static lines. Another witness testified that they were sometimes visible. He proceeded toward Krome Avenue and collided with the wires, resulting in the crash. Mr. Lively testified that all flight manuals teach that one must stay clear of transmission poles and assume that there are wires strung between them. ²

Plaintiff's expert testified that the crash occurred within what is known as the Dade County Airport Zoning Area and the FAA TCA (or approach zones). He testified that because many airplanes fly into MIA and through the area surrounding the airport, "... unusual considerations for safety have to be made." He then concluded that all static wires in the airport approach zones, which range from the airport up to 20 miles out in many directions, should be marked, and in particular the wires involved in this accident, which were 8.7 miles out and 102 feet off of the ground. However, in reaching this conclusion, he testified that he knew of no instance where such markers are used in the State of Florida. He has not seen any markers 8 1/2 miles from an airport in Florida and, out of the many people that fly into the airport zoning area, Mr. Lively is the only one he knows of that has hit a line. The plaintiff's expert also stated that he had no personal experience in installing, inspecting or flying over such markers. Significantly, he conceded that failing to mark the static lines did not violate any FAA regulations. The uncontroverted evidence revealed that at the location of the accident the appropriate regulations permit structures up to 1620 feet high. Such structures need only be marked if they are in excess of 200 feet. The plaintiff's expert testified that pilots should not fly between towers or poles.

The essential elements of negligence from which liability will flow are duty, breach of duty, legal cause and damage. W. Prosser, Torts § 30 p. 143 (4th ED.1979). FPL contends that the first three elements are absent in this case.

The term duty has been criticized as a "... shorthand statement of a conclusion, rather than an aid to analysis in itself." Prosser, supra, at p. 325. No universal test has ever been formulated, however one recognized definition of "duty" is the existence of a relationship between individuals which imposes upon one the legal obligation to conform to a standard of reasonable conduct so as to protect the other from foreseeable and unreasonable risks of harm. Prosser, supra, at pp. 143, 324. Whether a duty exists is a question of law for the court. Prosser, supra, at p. 206. The issue of breach of duty is often considered a question for the jury, unless only one reasonable conclusion may be drawn from the facts in evidence. See Rice v. Florida Power and Light Company, 363 So.2d 834 (Fla. 3d DCA 1978). Bayman v. Clearwater Power Co., Inc., 15 Wash.App. 566, 550 P.2d 554 (1976). "If no reasonable duty was abrogated, as a matter of law, no negligence [can] be found." Rice v. Florida Power and Light Company, supra. FPL contends that under the evidence elicited below, there was no duty or breach of duty as a matter of law.

FPL's contentions are supported by authorities which discuss duty in cases involving injuries resulting from the location or placement of power lines. A recent case involving an aircraft which struck a static line is Lea v. Baumann Surgical Supplies, Inc., 321 So.2d 844 (La.App.1975). There the passenger in a plane was killed when the aircraft struck a 3/8 inch static wire while attempting to land on a privately owned strip. The transmission poles were located 1,191 feet from the runway and they were strung 98.6 feet high. The passenger's wife sued several parties including the power company. As to the power company's negligence, it was contended, inter alia, that it failed to properly mark the wires and supporting structures with markers or lights to make them more visible. The jury found the company negligent. The Louisiana Court of Appeal reversed and said:

"It is elementary tort law that negligence is the breach of a duty of care owed the injured party. If there is no duty to exercise care as to a given plaintiff, defendant's conduct does not amount to negligence and is not actionable."

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"The first inquiry is whether the conduct complained of is a cause in fact of the harm. Secondly, it must be determined whether defendant was under a legal duty imposed to protect against the particular risk involved. The final question is whether defendant breached a duty imposed."

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"Notwithstanding the erection of the wire by LP & L was a cause in fact of the accident, liability does not attach upon LP & L herein for the simple reason there was no duty, statutory or otherwise, resting upon LP & L with respect to either erecting or marking the line. LP & L cannot be negligent in failing to discharge a duty of care which did not exist....

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We do not believe it could be argued logically that every transmission line, regardless of height and location must be marked, under penalty of liability for all ensuing air accidents. Such a rule, we believe, would be basically nonsensical.

Our appreciation of the record impels the inescapable conclusion that erection of this facility did not constitute a hazard to air navigation, albeit the poles and wire extended a maximum of 98.6 and a minimum of 67 feet above the earth at the span in question. As thus constructed, the wire did not constitute a hazard to any pilot landing at Cora airstrip pursuant to a normal flight pattern and observing basic rules of air safety."

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"We do not deem it negligence to fail to foresee that a pilot will attempt a landing in violation of fundamental principles of safe flying. We find the same reasoning applies with respect to LP & L's failure to mark the line. Since the line was not a hazard to air navigation, we do not deem it negligence to fail to mark its existence."

Another case finding no duty is Gunn v. Edison Sault Electric Co., 24 Mich.App. 43, 179 N.W.2d 680 (1970). There, a seaplane collided with the power company's transmission wires while attempting to land on a river. The wires ran 120 yards over the water at an altitude of 38 feet. The plaintiff alleged that "[t]here were no markers on the poles of the defendant, nor on the power lines." As noted by the Court:

"The question presented to us on appeal is whether the defendant was guilty of common-law negligence in failing to have the line and poles marked with either paint or some type of reflector."

As a predicate to answering this question, the Court observed that the pilot had approached the landing from a different direction than most pilots had ever been known to do. The Court then stated as follows:

"Conversely, the law is complied with when an electric or telephone company or others engaged in the transmission or use of electricity provide such a...